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  • The NSW Court of Appeal recently overturned three generous first instance family provision awards, perhaps signalling a more structured approach to the judicial discretion in the Succession Act 2006 (NSW).
  • In Lodin v Lodin, the Court held that the factors relevant to whether a claimant is a ‘natural object of testamentary recognition’ must not be conflated with those relevant to whether an order for provision should be made.
  • In Sgro v Thompson, the Court held that the adequacy of provision in a will is not to be determined solely by reference to a claimant’s poor financial circumstances.
  • ‘Living together’ for the purpose of assessing eligibility based on a close personal relationship requires more than ‘repeat visits for a single purpose’, as established in Smoje v Forrester.

Family provision cases involve careful exercise of judicial discretion. As with any case involving discretion, it is easy to indulge in ‘armchair reasoning’ and come to different conclusions than the trial judge. Reasonable minds can, and do, differ. Judges understand that. In explaining what many saw as a stunningly generous award ($750,000) to a deceased’s former wife, Brereton J confessed that ‘this is not an easy case … judicial minds may differ on it’ (Lodin v Lodin; Estate of Dr Mohammad Masoud Lodin [2017] NSWSC 10, at [79]).

His Honour was right; many minds – judicial and otherwise – did differ. What excited attention in Lodin v Lodin were the unusual circumstances of the vitriolic relationship between the deceased and the plaintiff, over many years after their divorce. The level of vitriol and persecution heaped on the deceased by the plaintiff led many to question how she could have been found to be a natural object of testamentary recognition. Another family provision case raised eyebrows in July when a man who had a friendship of sorts for, at most two years before the deceased died, was awarded $550,000 from her estate, due to their ‘close personal relationship’ at the time of her death (Estate MPS, deceased [2017] NSWSC 482).

These cases fuelled the familiar concern that family provision judges are too careless of testamentary intention and overly generous when exercising their broad judicial discretion to order further provision from a deceased’s estate. These two cases were overturned by the NSWCA at the end of 2017. At about the same time the Court of Appeal also overturned another first instance decision of the Supreme Court. Running through the three unanimous judgments, we can detect a call for a more restrained and structured approach to the legislative scheme for family provision under ch 3 of the Succession Act 2006 (NSW) (‘the Act’).

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